93 Decision Citation: BVA 93-13061
Y93
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
DOCKET NO. 92-13 051 ) DATE
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THE ISSUE
Entitlement to an increased evaluation for traumatic arthritis of the
cervical spine, currently evaluated at 20 percent.
REPRESENTATION
Appellant represented by: The American Legion
ATTORNEY FOR THE BOARD
N. L. Rippel, Associate Counsel
INTRODUCTION
The veteran had active service from March 1942 to September 1945. He
was interned as a prisoner of war by the German Government from June 9
to 26, 1944.
This case came before the Board of Veterans' Appeals (Board) on appeal
of a December 1991 rating decision by the Huntington, West Virginia,
Regional Office (RO), that denied an evaluation in excess of 20
percent for traumatic arthritis of the cervical spine. The notice of
disagreement was received in January 1992. A statement of the case
was furnished in February 1992. The substantive appeal was received
in February 1992. A confirmed and continued rating decision was
issued in June 1992, following the submission of additional evidence.
A supplemental statement of the case was furnished in June 1992. The
case was received and docketed at the Board in July 1992, at which
time it was referred to the veteran's accredited service
representative, The American Legion, who submitted written argument in
December 1992. The case is now ready for appellate consideration.
CONTENTIONS OF APPELLANT ON APPEAL
Essentially, the veteran contends that the current disability
presented by his traumatic arthritis of the cervical spine is more
than moderately disabling. He states that the degenerative changes in
his cervical spine cause him to have pain in his legs while walking
and standing, that he is unable to get into a crouched position, and
that, therefore, his actual range of motion is severely limited.
DECISION OF THE BOARD
In accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991),
following review and consideration of all evidence and material of
record in the veteran's claims file, and for the following reasons and
bases, it is the decision of the Board that the preponderance of the
evidence is against a claim for an evaluation in excess of 20 percent
for traumatic arthritis of the cervical spine.
FINDING OF FACT
Traumatic arthritis of the cervical spine is manifested by
symptomatology productive of not more than moderate disability.
CONCLUSION OF LAW
The criteria for a schedular evaluation in excess of
20 percent for traumatic arthritis of the cervical spine are not met.
38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.7, 4.40, 4.71a,
Diagnostic Codes 5003, 5010, 5290 (1992).
REASONS AND BASES FOR FINDING AND CONCLUSION
The veteran's claim is well grounded within the meaning of 38 U.S.C.A.
§ 5107 in that he has presented a claim which is plausible. We are
satisfied that all relevant facts have been properly developed, and no
further assistance to the veteran is required to comply with the duty
to assist as mandated by 38 U.S.C.A. § 5107.
The veteran primarily asserts that an increased evaluation for
traumatic arthritis of the cervical spine is warranted as the disorder
is more than 20 percent disabling. We note that the veteran's initial
claim for compensation was received at the RO in September 1945, and
that service connection was granted for, among other things, neck
muscle strain in October 1945. A Board decision dated December 1989
granted service connection for traumatic arthritis of the cervical
spine, and the RO subsequently assigned a 10 percent evaluation under
Diagnostic Codes 5010-5290, effective from May 1987. In an October
1990 rating decision, a 20 percent evaluation was assigned, effective
from July 1990. The most recent request for an increased evaluation
was received at the RO in October 1991, and the rating decision
appealed herein confirmed and continued the 20 percent evaluation.
Disability evaluations are assigned based upon average impairment of
earning capacity in accordance with the schedule of ratings. 38
U.S.C.A. § 1155; 38 C.F.R. Part 4 (1992).
Traumatic arthritis substantiated by X-ray findings shall be rated as
degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010.
Degenerative arthritis shall be rated on the basis of limitation of
motion under the appropriate diagnostic code for the specific joint or
joints involved. Limitation of motion must be objectively confirmed
by findings such as swelling, muscle spasm, or satisfactory evidence
of painful motion. 38 C.F.R. § 4.71a, Diagnostic Code 5003. Severe
limitation of motion of the cervical spine is rated 30 percent
disabling. A 20 percent rating is assigned for moderate limitation of
motion. 38 C.F.R. § 4.71a, Diagnostic Code 5290.
A review of the veteran's pertinent history reveals that he suffered
injury to his neck in a plane crash during the Normandy Invasion in
1944. He was held as a prisoner of war by the German Government in
France for approximately 17 days during the invasion. The veteran had
recurring pain in his neck and, following his discharge from service
in 1945, service connection was granted for neck muscle strain. Over
the years, the veteran complained of worsening pain in the cervical
spine. Upon Department of Veterans Affairs (VA) examination in
September 1983, range of motion of the cervical spine was within
normal limits, with slight limitation of motion on rotation. X-rays
dated August 1983 showed diminution of cervical intervertebral space.
Cervical spondylosis was noted on X-ray in August 1984. A report of a
September 1990 orthopedic examination performed by P. Kent Thrush,
M.D. showed cervical spine motion restricted by 50 percent in all
directions.
Recent evidence includes VA outpatient treatment records dated
February 1990 to September 1991, private medical records from Robert
J. Sidow, M.D., and a report of a March 1992 VA examination.
Outpatient treatment records contain X-rays taken in February 1991
that show marked degenerative changes of the cervical spine and
straightening of the cervical lordosis. Narrowing of intervertebral
cervical disc space was noted, along with hypertrophic spur formation
and osteopenia. Dr. Sidow, in a September 1991 letter, noted that
recent X-rays showed severe arthritis of the cervical spine,
narrowing, and inner spurring. He stated that the neck had limitation
of 30 percent rotation and flexion.
Upon VA examination in March 1992, the veteran complained of neck pain
radiating to both arms. Degenerative disc disease and intervertebral
disc narrowing between C5-6, C6-7, osteophytic encroachment of several
of the lower intervertebral foramina on the left and right sides were
noted. The impression was cervical spondylosis. Forward flexion of
the cervical spine was normal, but painful. Backward extension was
limited to 15 degrees. Lateral flexion was limited to 15 degrees, and
lateral rotation was limited to 20 degrees.
After a longitudinal review of the record, we find that the veteran's
symptoms warrant a 20 percent evaluation. The VA's Physician's Guide
for Disability Evaluation Examinations Section 2.23 (1985), lists
normal cervical range of motion as follows: forward flexion of 30
degrees, extension backward of 30 degrees, lateral flexion of
40 degrees, rotation of 55 degrees. In light of these standards, we
find that overall not more than a moderate degree of limitation is
shown. Thus, an increased evaluation to 30 percent under 38 C.F.R.
§§ 4.40, 4.71a, Diagnostic Codes 5010-5290 is not warranted.
Consideration has also been given to the potential application of the
various provisions of 38 C.F.R. Parts 3 and 4, whether or not they
were raised by the veteran, as required by Schafrath v. Derwinski,
1 Vet.App. 589 (1991). In particular, we find that the evidence
discussed above does not suggest that traumatic arthritis of the
cervical spine presents such an exceptional or unusual disability
picture as to render impractical the application of the regular
schedular standards so as to warrant the assignment of an
extraschedular evaluation under 38 C.F.R. § 3.321(b). For example,
this disability did not require frequent periods of hospitalization,
nor does it present marked interference with employment. Although the
veteran has contended that he has leg pain resulting from cervical
(neck) spine arthritis, it is otherwise noted that radiating leg pain
is more likely associated with his non-service-connected post
operative ruptured lumbar disc. As to his complaints of radiating
pain of the arm, the veteran is also assigned a separate 10 percent
rating for partial paralysis of the right ulnar nerve and a separate
30 percent rating for residuals of a gunshot wound to the right
shoulder, both of which may account for tingling and pain.
ORDER
Entitlement to an evaluation in excess of 20 percent for traumatic
arthritis of the cervical spine is denied.
BOARD OF VETERANS' APPEALS
WASHINGTON, D.C. 20420
M. SABULSKY HARRY M. McALLISTER, M.D.
J. U. JOHNSON
NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), a
decision of the Board of Veterans' Appeals granting less than the
complete benefit, or benefits, sought on appeal is appealable to the
United States Court of Veterans Appeals within 120 days from the date
of mailing of notice of the decision, provided that a Notice of
Disagreement concerning an issue which was before the Board was filed
with the agency of original jurisdiction on or after November 18,
1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402
(1988). The date which appears on the face of this decision
constitutes the date of mailing and the copy of this decision which
you have received is your notice of the action taken on your appeal by
the Board of Veterans' Appeals.